PRINTER'S NO. 2125
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
1380
Session of
2015
INTRODUCED BY MENSCH, HAYWOOD, BREWSTER, FONTANA, WOZNIAK,
TEPLITZ, YAW, RAFFERTY, WARD, VULAKOVICH, ALLOWAY, BAKER,
YUDICHAK, BROWNE AND BOSCOLA, OCTOBER 12, 2016
REFERRED TO AGING AND YOUTH, OCTOBER 12, 2016
AN ACT
Amending Title 23 (Domestic Relations) of the Pennsylvania
Consolidated Statutes, providing for older adult services,
establishing penalties and making a repeal.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 23 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 69
OLDER ADULTS PROTECTIVE SERVICES
Subchapter
A. Preliminary Provisions
B. Financial Institutions
C. Protective Services
D. Criminal History
E. Remedies
F. Administration
SUBCHAPTER A
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PRELIMINARY PROVISIONS
Sec.
6901. Scope.
6902. Definitions.
6903. Duties of department and area agencies on aging.
§ 6901. Scope.
This chapter relates to older adult protective services.
§ 6902. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Abandonment." The desertion of an older adult by a
caretaker.
"Abuse." Intentionally, willfully, knowingly or recklessly
causing or attempting to cause:
(1) Infliction of injury or unreasonable confinement
resulting in physical harm or pain.
(2) Intimidation or punishment resulting in mental
anguish.
(3) The deprivation by a caretaker of goods or services
which are necessary to maintain physical or mental health.
(4) Sexual abuse, including rape, involuntary deviate
sexual intercourse, sexual assault, aggravated indecent
assault, indecent assault or incest.
(5) Sexual harassment, including unwelcome sexual
advances, requests for sexual favors and other unwelcome
verbal or physical conduct of a sexual nature.
"Administrator." The person responsible for the management
of a facility. The term includes a person responsible for
employment decisions or an independent contractor responsible
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for administration of a facility.
"Agent." A person authorized to act on behalf of an older
adult, including a person acting pursuant to a power of
attorney.
"Applicant." An individual seeking employment or engagement
as an employee.
"Area agency on aging." The single local agency designated
by the department within each planning and service area to
administer the delivery of protective services.
"Assessment." The evaluation of an older adult's social,
physical and psychological well-being, along with a description
of the older adult's current resources and needs.
"Care." Services provided to meet an older adult's need for
personal care or health care which require interaction with the
older adult.
"Care-dependent individual." An adult who, due to physical
or cognitive disability or impairment, requires assistance to
meet needs for food, shelter, clothing, personal care or health
care.
"Caretaker." An individual or entity that has assumed the
responsibility for the provision of care needed to maintain the
physical or mental health of an older adult. This responsibility
may arise voluntarily, by contract, by receipt of payment for
care, as a result of familial relationship, or by order of a
court of competent jurisdiction. It is not the intent of this
chapter to impose responsibility on any individual if the
responsibility would not otherwise exist in law.
"Case record." The complete record of the information
received and the actions taken by the area agency on aging on
each report of need.
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"Consent." Authorization or approval, which, when feasible,
shall be obtained in writing.
"Department." The Department of Aging of the Commonwealth.
"Employee." An individual who:
(1) either:
(i) is employed by a facility; or
(ii) enters into a contractual relationship with a
facility to provide care to an older adult; and
(2) has unsupervised access to the individual or the
individual's living quarters, resources or personal records,
including employees of affiliated corporate entities.
"Exploitation." An act or course of conduct by a caretaker
or other person against an older adult or an older adult's
resources, which, through misrepresentation, coercion or threats
of force, results in monetary, personal or other benefit, gain
or profit for that caretaker or person, or monetary or personal
loss to the older adult, including an act or course of conduct
by an agent that violates the agent's duties to the older adult.
"Facility." Any of the following:
(1) A domiciliary care home as defined in section 2202-A
of the act of April 9, 1929 (P.L.177, No.175), known as The
Administrative Code of 1929.
(2) An assisted living residence as defined in section
1001 of the act of June 13, 1967 (P.L.31, No.21), known as
the Public Welfare Code.
(3) A personal care home as defined in section 1001 of
the Public Welfare Code.
(4) The following entities as defined in section 802.1
of the act of July 19, 1979 (P.L.130, No.48), known as the
Health Care Facilities Act:
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(i) A home health care agency.
(ii) A long-term care nursing facility.
(iii) A hospice.
(iv) A home care agency.
(v) A home care registry.
(5) An older adult daily living center as defined in
section 2 of the act of July 11, 1990 (P.L.499, No.118),
known as the Older Adult Daily Living Centers Licensing Act.
(6) A Living Independence for the Elderly (LIFE)
provider as authorized under the Balanced Budget Act of 1997
(Public Law 105-33, 111 Stat. 251) and licensed under the
Older Adult Daily Living Centers Licensing Act.
(7) Any other public or private organization or entity,
or part of an organization or entity, that uses public funds
and is paid, in part, to provide care to care-dependent
individuals.
The term does not include an entity licensed by the Department
of Drug and Alcohol Programs or the Department of Health to
provide drug and alcohol addiction treatment services or an
entity licensed by the Department of Human Services' Office of
Developmental Program.
"Financial exploitation." Exploitation involving the illegal
taking, misuse or concealment of funds, property or assets of an
older adult in the custody or control of a financial
institution.
"Financial institution." Any of the following:
(1) A national banking association.
(2) A State banking institution.
(3) Any other state bank that maintains a branch in this
Commonwealth.
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(4) A credit union that is organized under Federal or
State law.
(5) A savings and loan association that is organized
under Federal or State law.
"Intimidation." An act or omission by any person or entity
toward another person that obstructs, impedes, impairs, prevents
or interferes with the administration of this chapter or any
other law intended to protect older adults from mistreatment.
"Law enforcement official." Any of the following:
(1) A police officer of a municipality.
(2) A peace officer, as defined in 18 Pa.C.S. § 501
(relating to definitions).
(3) A district attorney.
(4) The Pennsylvania State Police.
(5) The Office of Attorney General.
(6) The Department of Justice and other Federal law
enforcement agencies.
(7) Law enforcement authorities in other states.
"Mandatory reporter." Any of the following:
(1) Facility employees and administrators.
(2) Physicians or other licensed or certified health
care professionals.
"Neglect." The failure to provide for oneself or the failure
of a caretaker to provide goods or services essential to avoid a
clear and serious threat to physical or mental health.
"Older adult." An individual residing within this
Commonwealth who is 60 years of age or older.
"Older adult in need of protective services." An older adult
who is unable to perform or obtain services that are necessary
to maintain physical or mental health, for whom there is no
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responsible caretaker and who is at risk of danger to his person
or property.
"Protective services." Those activities, resources and
supports provided to older adults under this chapter to detect,
prevent, reduce or eliminate abuse, neglect, exploitation and
abandonment.
"Serious bodily injury." Injury which creates a substantial
risk of death or which causes serious permanent disfigurement or
protracted loss or impairment of the function of a body member
or organ.
"Serious physical injury." An injury that:
(1) causes a person severe pain; or
(2) significantly impairs a person's physical
functioning, either temporarily or permanently.
"Service plan." A written plan developed by an area agency
on aging on the basis of a comprehensive assessment of an older
adult that describes identified needs and specific services
designed to support goal attainment. The plan shall include
regular follow-up appointments and predetermined reassessment of
progress. Specific services to support goal attainment may
include, but are not limited to , homemaker services, home-
delivered meals, personal care, other in-home services,
emergency shelter or food, legal aid services, transportation
and other such services. Service plans are cooperatively
developed by area agency on aging staff, the older adult or the
older adult's legal representative, and other family members,
when appropriate. The plan shall address special needs of other
members of the household unit if they affect the older adult's
need for protective services.
"Suspicious death." A death which is unexpected with
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unexplained circumstances or cause.
§ 6903. Duties of department and area agencies on aging.
(a) Public information and interdepartmental consultation.--
The department shall:
(1) Conduct an ongoing campaign designed to inform and
educate older adults, professionals and the general public
about the need for and the availability of protective
services under this chapter .
(2) Consult with other Commonwealth agencies on the
design and implementation of the ongoing public awareness
campaign.
(3) Consider the concerns of area agencies on aging and
the entities identified by them under subsection (c).
(b) Staff training.--
(1) The department shall establish minimum standards of
experience and training that protective services providers
funded by the department shall be required to follow in the
selection and assignment of staff for the provision of
protective services.
(2) The department may establish a training program for
mandatory reporters to inform employees about the requirement
to report under this chapter .
(c) Protective services plans.--Each area agency on aging
shall include a protective services plan as part of its annual
plan. The plan shall describe the local implementation of this
chapter , including the organization, staffing, mode of
operations and financing of protective services, as well as the
provisions made for purchase of services, interagency relations,
interagency agreements, service referral mechanisms and locus of
responsibility for cases with multiservice agency needs.
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(d) Confidentiality.--The department shall establish the
methods that shall be used by an area agency on aging, its
designees and its service providers to assure the privacy of
older adults receiving services and the confidentiality of all
records.
(e) Schedule.--The department shall establish a schedule for
the submission and approval of the plans.
SUBCHAPTER B
FINANCIAL INSTITUTIONS
Sec.
6911. Duties of financial institutions.
6912. Reporting.
6913. Receipt and investigation of reports.
6914. Provision of protective services.
§ 6911. Duties of financial institutions.
(a) Voluntary reporting of financial exploitation.--
Notwithstanding any provisions of Federal or State law that
limit or prohibit disclosure, a financial institution, including
its designated personnel, may report financial exploitation of
an older adult to the department or the area agency on aging as
provided by section 6912 (relating to reporting) if an employee
of the financial institution, while acting within the scope of
the employee's employment:
(1) has direct contact with an older adult or reviews or
approves an older adult's financial documents, records or
transactions in connection with financial services provided
by the financial institution to or for the older adult; and
(2) observes or obtains knowledge of behavior, unusual
circumstances or transactions that lead the employee to know
or have reasonable cause to suspect that the older adult is
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the victim of financial exploitation.
(b) Staff training.--
(1) The department, in cooperation with the financial
services industry and the Department of Banking and
Securities, shall develop and provide training programs for
the personnel of area agencies of aging regarding the
identification and prevention of financial exploitation of
older adults and on procedures to provide relief to older
adults from financial exploitation.
(2) Financial institutions shall implement a training
program for employees in recognizing the types of warning
signs and evidence that would be acceptable indicators of
financial exploitation of an older adult.
(3) The department shall establish a model training
program, in consultation with representatives of the
financial services industry and the Department of Banking and
Securities, for personnel of financial institutions regarding
the identification and prevention of financial exploitation
of older adults and on procedures to provide relief to older
adults from financial exploitation, including guidelines
about when to report suspected financial exploitation, to
whom suspected financial exploitation should be reported,
information that should be included in a report and
applicable laws, rules and regulations that must be followed
while reporting suspected financial exploitation. The
department may adopt a national organization's training
program as its model training program so long as the training
is certified or accredited.
(4) Each financial institution with employees in this
Commonwealth shall provide training to employees who have
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direct contact with older adults and conduct financial
transactions, including monitoring of electronic only
transactions, for or on behalf of older adults to identify
and report to the institution transactions which have no
business or lawful purposes or would be of the type that a
particular older adult would not normally be expected to
engage as potential indicators of financial exploitation.
(5) A financial institution shall be deemed in
compliance with this subchapter if it uses a model training
program established by the department under paragraph (3) or
is subject to training requirements established under Federal
laws, regulations or policies consistent with the
requirements of this paragraph and is subject to examination
by Federal regulatory agencies to ensure compliance with the
requirements.
(c) Authority to prohibit disbursement of funds and
transactions.--
(1) Pending an investigation by a financial institution,
an area agency on aging or law enforcement official, if a
financial institution reasonably believes that financial
exploitation of an older adult may have occurred, may have
been attempted or is being attempted, the financial
institution may, but is not required to, refuse to disburse
or engage in a transaction, as appropriate, to prevent
financial exploitation of an older adult with respect to the
account:
(i) of the older adult;
(ii) on which the older adult is a beneficiary,
including a trust or guardianship account; or
(iii) of a person suspected of perpetrating
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financial exploitation of an older adult.
(2) A financial institution may also refuse to disburse
funds or engage in a transaction under this section if an
area agency on aging or law enforcement official provides
information to the financial institution demonstrating that
it is reasonable to believe that financial exploitation of an
older adult may have occurred, may have been attempted or is
being attempted.
(3) A financial institution is not required to refuse to
disburse funds or engage in a transaction when provided with
information alleging that financial exploitation may have
occurred, may have been attempted or is being attempted, but
may use its discretion to determine whether or not to refuse
to disburse funds based on the information available to the
financial institution.
(4) Except as provided by Federal or State law, a
financial institution that refuses to disburse funds or
engage in a transaction based on a reasonable belief that
financial exploitation of an older adult may have occurred,
may have been attempted or is being attempted shall:
(i) Make a reasonable effort to notify all parties
authorized to transact business on the account orally or
in writing.
(ii) Report the incident to the area agency on aging
and law enforcement officials.
(5) Any refusal to disburse funds or engage in a
transaction as authorized by this section based on the
reasonable belief of a financial institution that financial
exploitation of an older adult may have occurred, may have
been attempted or is being attempted shall expire upon the
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sooner of:
(i) ten business days after the date on which the
financial institution first refused to disburse the funds
or engage in the transaction, unless terminated or
extended by an order of a court of competent
jurisdiction, a law enforcement official, the department
or an area agency on aging. An additional five business
days shall be permitted, if requested by a law
enforcement official, the department or an area agency on
aging, following the submission of a petition for a court
order further extending the time period; or
(ii) the time when the financial institution is
satisfied that the disbursement will not result in
financial exploitation of an older adult.
(6) A court of competent jurisdiction may enter an order
extending the refusal by the financial institution to
disburse funds or engage in a transaction based on a
reasonable belief that financial exploitation of an older
adult may have occurred, may have been attempted or is being
attempted. A court of competent jurisdiction may also order
other protective relief as authorized.
(d) Immunity.--Except as provided under subsection (f), a
financial institution and its directors, officers, employees or
agents shall not be subject to a claim for damages or other
civil or criminal liability for:
(1) The identification or failure to identify the
financial exploitation of an older adult.
(2) A decision to make a report or not make a report
under subsection (a).
(3) A refusal to disburse funds or engage in a
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transaction under subsection (c) or a decision to allow the
disbursement of funds or engage in a transaction under
subsection (c).
(4) The release of information to a law enforcement
official, the department or an area agency on aging as
authorized by this subchapter.
(e) Additional immunities and defenses.--Notwithstanding any
other law to the contrary:
(1) The refusal by a financial institution to engage in
a transaction authorized under this subsection shall not
constitute the wrongful dishonor of an item under 13 Pa.C.S.
§ 4402 (relating to liability of bank to customer for
wrongful dishonor; time of determining insufficiency of
account).
(2) A reasonable belief that payment of a check will
facilitate the financial exploitation of an older adult shall
constitute reasonable grounds to doubt the collectibility of
the item for purposes of the Expedited Funds Availability Act
(Public Law 100-86, 12 U.S.C. § 4001 et seq.), The Check
Clearing for the 21st Century Act (Public Law 108-100, 12
U.S.C. § 5001 et seq.) and 12 CFR Pt. 229 (relating to
availability of funds and collection of checks).
(f) Limitation.--The immunities and defenses provided under
subsections (d) and (e) shall not apply to a director, officer,
employee or agent involved in the financial exploitation of an
older adult.
(g) Suspicious activity reports.--The department shall use
its best efforts to enter into a cooperative agreement with the
United States Department of the Treasury to receive or access
suspicious activity reports filed by financial institutions with
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the United States Department of the Treasury. Except as
prohibited by Federal law, any other Commonwealth agency which
receives or is granted access to the reports from the United
States Department of the Treasury shall make the reports or
access to the reports available to the department to facilitate
the discharge of the department ' s duties under this chapter. For
the purpose of authorizing access to suspicious activity
reports, the department shall be deemed to be a law enforcement
agency authorized to receive the reports under Federal laws and
regulations.
§ 6912. Reporting.
(a) Voluntary reports.--Any person, including employees of
financial institutions, having reasonable cause to suspect that
an older adult may be a victim of suspicious death, serious
bodily injury, serious physical injury, sexual abuse or
financial exploitation may report the information to the area
agency on aging.
(b) Mandatory reports to area agency on aging.-- A mandatory
reporter, who has reasonable cause to suspect that an older
adult may be a victim of abuse, neglect, exploitation or
abandonment, shall immediately make an oral report to the area
agency on aging. If applicable, the area agency on aging shall
advise the mandatory reporter of additional reporting
requirements that may apply under subsection (c). Within 48
hours of making the oral report, the mandatory reporter shall
make a written report to the area agency on aging.
(c) Mandatory reports to law enforcement officials and
department.--In addition to the report under subsection (a), a
mandatory reporter who has reasonable cause to suspect that an
older adult may be a victim of suspicious death, serious bodily
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injury, serious physical injury, sexual abuse or financial
exploitation shall immediately contact law enforcement officials
and the department to make an oral report. Within 48 hours of
making the oral report, the mandatory reporter shall make a
written report to appropriate law enforcement officials and to
the area agency on aging. The area agency on aging shall forward
the report to the department within 48 hours of receipt.
(d) Contents of report.-- A written mandatory report under
this section shall be in a manner and on forms prescribed by the
department. At a minimum, the report shall include the following
information, as well as anything additional required by
regulation:
(1) Name, age, sex and address of the older adult.
(2) Name and address of the older adult's legal
representative or next of kin.
(3) Name and address of the facility, if applicable.
(4) Nature and location of the reported incident and any
specific comments or observations that are directly related
to the alleged incident and the older adult involved.
(5) Any relevant information known related to the
identity of the alleged perpetrator, including, but not
limited to, name, age, sex and relationship to the older
adult.
(6) Name of the individual making the report, contact
information for the reporter and information regarding any
actions taken by the reporter in response to the incident.
(e) Training.-- Mandatory reporters shall be trained on the
requirements to report under this sub chapter .
(f) Coroner.--For a report under this section that concerns
the death of an older adult, if there is reasonable cause to
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suspect that the older adult died as a result of abuse, neglect,
exploitation or abandonment, the area agency on aging shall give
the oral report and forward a copy of the written report to the
appropriate coroner within 24 hours.
§ 6913. Receipt and investigation of reports.
(a) Receipt.--The area agency on aging must be capable of
receiving reports of older adults in need of protective services
24 hours a day, seven days a week. This capability may include
the use of a local emergency response system or a crisis
intervention agency, provided that access can be made to a
protective services caseworker in appropriate emergency
situations, as set forth in regulations issued by the
department. All reports received orally shall be documented in a
manner set forth by the department.
(b) Investigation.--It shall be the area agency on aging's
responsibility to investigate each report in accordance with
regulations issued by the department. The investigation shall be
initiated within 72 hours after the receipt of the report and
shall be carried out under regulations issued by the department.
The regulations shall provide for the methods of conducting
investigations and shall assure that steps are taken to avoid
any conflict of interest. Consent of the older adult is not
required in order to investigate reports of abuse, neglect,
exploitation or abandonment.
(c) Access to older adults.--
(1) The area agency on aging shall have direct access to
older adults who have been reported to be in need of
protective services in order to:
(i) Investigate reports.
(ii) Assess needs of the older adult and develop a
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service plan for addressing those needs.
(iii) Provide for the delivery of services by the
area agency on aging or other service provider arranged
for under the service plan.
(2) If the area agency on aging is denied access to an
older adult reported to be in need of protective services,
the area agency on aging may petition the court for an order
to require any of the following:
(i) Access to the older adult.
(ii) A medical evaluation of the older adult.
(iii) A psychiatric evaluation of the older adult.
(d) Access to records.--
(1) The area agency on aging shall, subject to the
consent of the older adult, have access to all records for
the purposes of:
(i) Assessing an older adult's need for services.
(ii) Planning and delivery of services.
(iii) Investigating reports.
(2) If an older adult refuses to provide consent, the
department or the area agency on aging may file a petition
with the court of common pleas in the county where the older
adult resides for an order compelling the production of
records. Upon the issuance of the order, the department or
the area agency on aging shall have access to all records
reasonably necessary for the purposes of investigating
reports. If a record custodian refuses to comply with an
order, the area agency on aging may file a petition with the
court of common pleas in the county where the older adult
resides for an order compelling the production of records.
The area agency on aging or the department shall compensate
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the record custodian for actual costs of producing records,
or amounts as set forth by regulations adopted by the
department.
(3) Records of State agencies, private organizations,
financial institutions, medical institutions and
practitioners, which the area agency on aging reasonably
believes to be necessary to complete an investigation or
assessment and service plan, shall be requested in written
form and be made available to the area agency on aging unless
the disclosure would be prohibited by any other provision of
Federal or State law.
(4) A financial institution may release nonpublic
personal information when reporting a known or suspected
instance of financial exploitation of an older adult or when
cooperating with an area agency on aging or law enforcement
official investigation of known or suspected financial
exploitation of an older adult.
(5) If the area agency on aging can demonstrate that the
older adult has denied access to the older adult's records
because of incompetence, coercion, extortion or justifiable
fear, the area agency on aging shall have access to all
records. If the older adult denying access to records is
competent, the area agency on aging may petition the court
for an order to require access.
(6) If any other entity or individual denies access to
the older adult's records, the area agency on aging may
petition the court for an order to require access.
(e) Investigations involving facilities.--If the report
concerns a facility, the area agency on aging shall notify the
local ombudsman and the licensing agency. Any investigations
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concerning facilities shall be conducted under procedures
developed by the department in consultation with the
Commonwealth agency with oversight authority for the facility.
The department and any other Commonwealth agency shall share
information with one another necessary to ensure the health,
safety and welfare of the older adult. Facilities shall take
reasonable steps to protect the older adults following receipt
of a report of suspected abuse, neglect, exploitation or
abandonment involving a facility employee, including a plan of
supervision or suspension.
(f) Investigations involving law enforcement officials.--
(1) To the extent possible, law enforcement officials,
the area agency on aging and mandatory reporters shall
coordinate their respective investigations and shall advise
each other and provide any applicable additional information
on an ongoing basis.
(2) Upon receiving a report that falls into any of the
following categories, the area agency on aging shall
immediately notify a law enforcement official:
(i) Suspicious death.
(ii) Serious bodily injury.
(iii) Serious physical injury.
(iv) Sexual abuse.
(v) Financial exploitation.
(3) Following a referral to a law enforcement official:
(i) The area agency on aging shall contact a law
enforcement official to obtain information about any
actions taken and the outcomes, including any decisions
regarding criminal charges.
(ii) The law enforcement official shall provide this
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information to the extent that it is available.
(iii) The area agency on aging shall report this
information to the department in a manner prescribed by
the department.
(g) Unsubstantiated reports.--If, after investigation by the
area agency on aging, the report is unsubstantiated, the case
shall be closed. For purposes of substantiating a pattern of
abuse, neglect, exploitation or abandonment, case records shall
be maintained for three years.
(h) Substantiated reports.--
(1) If, after investigation by the area agency on aging,
the report is substantiated, the area agency on aging, in
conjunction with the older adult, shall develop a service
plan.
(2) The service plan shall encourage self-determination
and continuity of care in the least restrictive setting.
(3) For purposes of substantiating a pattern of abuse,
neglect, exploitation or abandonment, case records shall be
maintained for three years.
(4) The area agency on aging may pursue civil or
criminal remedies.
(5) An older adult shall not be found to be abused or
neglected solely on the grounds of environmental factors that
are beyond the control of the older adult or the caretaker,
such as inadequate housing, furnishings, income, clothing or
medical care.
§ 6914. Provision of protective services.
(a) Availability of protective services.--The area agency on
aging shall offer protective services under any of the following
conditions:
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(1) An older adult requests the services.
(2) Another interested person requests the services on
behalf of an older adult.
(3) After investigation of a report, the area agency on
aging determines the older adult is in need of the services.
(b) Consent by request.--An individual shall receive
protective services voluntarily unless the services are ordered
by a court of competent jurisdiction or requested by the older
adult's legal representative.
(c) Interference with services.--If any person interferes
with the provision of services or interferes with the right of
an older adult to consent to provision of services, the area
agency on aging may petition the court for an order enjoining
the interference.
(d) Financial obligations, liabilities and payments.--All
older adults receiving services and all agencies providing
services under this subchapter shall comply with the following
provisions regarding liability for the payment of services:
(1) Funding to provide or make available protective
services under this subchapter shall not be used in place of
any public or private entitlements or benefits for which the
older adult receiving protective services under this
subchapter is or may be eligible.
(2) Funding available to local protective services
agencies under this subchapter may be used to cover the costs
of activities, including, but not limited to:
(i) Administering protective services plans.
(ii) Receiving and maintaining records of reports of
abuse, neglect, exploitation and abandonment.
(iii) Conducting investigations of reported abuse,
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neglect, exploitation and abandonment.
(iv) Carrying out assessments and developing service
plans.
(v) Petitioning the court.
(vi) Providing for emergency involuntary
intervention.
(vii) Arranging for available services needed to
carry out service plans, which may include arranging for
services for other persons in order to reduce, correct or
eliminate abuse, neglect, exploitation or abandonment of
an older adult.
(viii) Purchasing, on a temporary basis, services
determined by a service plan to be necessary to reduce,
correct or eliminate abuse, neglect, exploitation or
abandonment of an older adult when the services are not
available within the existing resources of the area
agency on aging or other appropriate provider. Purchase
of services under this provision is limited to a 30-day
period which may be renewed with adequate justification
under regulations issued by the department.
(3) Older adults receiving protective services shall not
be required to pay a fee for any services received by other
older adults when the receipt of the services by others is
not subject to cost sharing.
SUBCHAPTER C
PROTECTIVE SERVICES
Sec.
6921. Involuntary intervention by emergency court order.
6922. Confidentiality of records.
6923. Rights of older adult.
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§ 6921. Involuntary intervention by emergency court order.
(a) Emergency petition.--An area agency on aging may
petition a court of common pleas for an emergency order to
provide protective services to an older adult who is at imminent
risk of death, sexual abuse, serious bodily injury, serious
physical injury or financial exploitation. The court of common
pleas shall grant the area agency on aging's petition if it
finds, by a preponderance of the evidence, that failure to
provide protective services will place the older adult at
imminent risk of death, sexual abuse, serious bodily injury,
physical injury or financial exploitation. The courts of common
pleas of each judicial district shall ensure that a judge or
magisterial district judge is available on a 24-hour-a-day, 365-
days-a-year basis to accept and rule on petitions for emergency
court orders under this section whenever the area agency on
aging determines that a delay until normal court hours may
significantly increase danger to the older adult.
(b) Limited order.--The court, after finding a preponderance
of evidence of the need for an emergency order, shall order only
services as are necessary to remove the conditions creating the
established need.
(c) Right to counsel.--In order to protect the rights of an
older adult for whom protective services are being ordered, an
emergency court order under this section shall provide that the
older adult has the right to legal counsel. If the older adult
is unable to provide for counsel, the counsel shall be appointed
by the court.
(d) Forcible entry.--If it is necessary to forcibly enter
premises after obtaining a court order, a law enforcement
official may do so, accompanied by a representative of the area
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agency on aging.
(e) Health and safety requirements.--The area agency on
aging shall take reasonable steps to ensure that while the older
adult is receiving services under an emergency court order, the
health and safety needs of any of the older adult's dependents
are met and that personal property and the dwelling the older
adult occupies are secure.
§ 6922. Confidentiality of records.
(a) General rule.--Information contained in reports, records
of investigation, assessments and service plans created under
this subchapter shall be considered confidential and shall be
maintained under regulations issued by the department. Except as
provided below, this information shall be disclosed by area
agency on aging staff for the purposes of development and
implementation of protective services. The department or the
area agency on aging may not release information that could be
detrimental to the older adult except that the information shall
be released to a law enforcement official under subsection (b)
(2) and may be used by the department in civil proceedings,
subject to protective orders. All information contained in
protective service records is subject to other Federal and State
confidentiality and security laws.
(b) Release of protective services records.--Protective
services records may be provided as follows:
(1) Protective services records may be provided to a
court of competent jurisdiction, or to another party,
pursuant to court order. A subpoena, other than a grand jury
subpoena, shall not be a court order for purposes of this
section.
(2) Protective services records may be provided to law
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enforcement officials or the coroner if the information is
relevant to the official's or coroner's investigation of
abuse, neglect, exploitation or abandonment of the older
adult.
(3) In arranging specific services to carry out service
plans, the area agency on aging may disclose to appropriate
service providers information as may be necessary to initiate
the delivery of services.
(4) The older adult who is the subject of a report or
the older adult's guardian may receive, upon written request,
all information contained in the report of need except
information that would identify the person who made a report
of suspected abuse, neglect, exploitation or abandonment, or
persons who cooperated in a subsequent investigation.
(5) A person who made a report of suspected abuse,
neglect, exploitation or abandonment may receive, upon
written request, confirmation that the report was received
and the area agency on aging is acting in accordance with
this subchapter.
(6) For the purposes of monitoring agency performance or
conducting other official duties, appropriate staff of the
department, as designated by the Secretary of Aging, may
access protective services records.
(7) The department or the area agency on aging may
collaborate or share information included in protective
services records with Commonwealth agencies for purposes of
official Commonwealth business.
(8) The department or the area agency on aging may share
protective services records with another area agency on aging
that is performing responsibilities under this subchapter
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relevant to older adults within their jurisdictions.
(9) An employee of an agency of another state who
performs older adult protective services similar to those
under this subchapter may access protective services records
relevant to older adults within their jurisdiction.
(10) Protective services records may be provided to a
practitioner of the healing arts who is examining or treating
the older adult and who suspects that the older adult is in
need of protection under this subchapter.
(11) Protective services records may be provided to the
director, or an individual specifically designated in writing
by the director, of any hospital or other medical institution
where the older adult is being treated if the director or
designee suspects that the recipient is in need of protection
under this chapter.
(12) Protective services records may be provided to a
financial institution reporting financial exploitation for
the purposes of assisting the financial institution in
determining whether to prohibit the disbursement of funds or
the completing of a transaction as provided under section
6911(c) (relating to duties of financial institutions).
(c) Protecting identity of reporter and cooperating
witnesses.--
(1) Except for disclosures to law enforcement officials,
the release of records that would identify the individual who
made a report under this subchapter or an individual who
cooperated in a subsequent investigation is prohibited.
(2) If records are provided pursuant to court order, the
identity of the reporter and cooperating witnesses shall be
deleted, unless otherwise ordered by the court after an in
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camera review.
(d) Penalties for unauthorized disclosure.--Any disclosure
of information obtained by the department or an area agency on
aging under this subchapter that is not authorized shall
constitute a misdemeanor of the third degree.
§ 6923. Rights of older adult.
(a) Notification.--The area agency on aging shall discreetly
notify the older adult during the investigation that a report
has been made and shall provide the older adult a brief summary
of the nature of the report.
(b) Information.--As provided in section 6922(b)(4)
(relating to confidentiality of records), the older adult who is
the subject of a report, or the older adult's guardian, provided
the guardian is not named in the report, may receive, upon
written request, all information contained in the report of need
except information that would identify the person who made a
report of suspected abuse, neglect, exploitation or abandonment
or persons who cooperated in a subsequent investigation.
(c) Appeal.--Any denial of services by the department or an
area agency on aging under this subchapter may be appealed
according to the provisions of the rules and regulations issued
by the department under Article XXII-A of the act of April 9,
1929 (P.L.177, No.175), known as The Administrative Code of
1929.
SUBCHAPTER D
CRIMINAL HISTORY
Sec.
6931. Criminal history.
§ 6931. Criminal history.
(a) General rule.--Prior to hiring or engaging an applicant,
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a facility shall require the applicant, owner or operator to
submit the following information obtained within the preceding
one-year period:
(1) Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal
history record information), a report of criminal history
record information from the Pennsylvania State Police or a
statement from the Pennsylvania State Police that its central
repository contains no such information relating to the
applicant. The provisions of 18 Pa.C.S. § 9121(b)(2)
(relating to general regulations) shall not apply to criminal
history information or other criminal history record
information requested or received under this section.
(2) Federal criminal history record information pursuant
to applicable Federal law. The following apply:
(i) The department shall serve as the intermediary
for the purposes of this section. The applicant shall
submit a full set of fingerprints to the Federal Bureau
of Investigation in a manner designated by the
department. The provisions of 18 Pa.C.S. § 9121(b)(2)
shall not apply to criminal history information or other
criminal history record information requested or received
under this section.
(ii) Criminal history information shall be used by
the department to determine the applicant's eligibility
for employment with a facility. The employment
determination shall be provided to the facility and the
applicant prior to commencement of employment. The
facility shall ensure confidentiality of the information.
(3) Additional applicant information from a court or
other authority as required by the department and within the
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time frame designated by the department. Failure to provide
the requested information within the time frame designated by
the department may result in employment ineligibility.
(b) Lifetime ban.-- A facility shall not hire or engage an
applicant required to submit information pursuant to this
subchapter if the applicant's criminal history record
information indicates the applicant has been convicted of an
offense or attempt, solicitation or conspiracy to commit an
offense under one of the following provisions of 18 Pa.C.S.
(relating to crimes and offenses):
(1) Chapter 25 (relating to criminal homicide).
(2) Chapter 26 (relating to crimes against unborn
child).
(3) Section 2702 (relating to aggravated assault).
(4) Section 2713 (relating to neglect of care-dependent
person).
(5) Section 2715 (relating to threat to use weapons of
mass destruction).
(6) Section 2716 (relating to weapons of mass
destruction).
(7) Section 2717 (relating to terrorism).
(8) Section 2901 (relating to kidnapping).
(9) Section 3121 (relating to rape).
(10) Section 3122.1 (relating to statutory sexual
assault).
(11) Section 3123 (relating to involuntary deviate
sexual intercourse).
(12) Section 3124.1 (relating to sexual assault).
(13) Section 3125 (relating to aggravated indecent
assault).
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(14) Section 3126 (relating to indecent assault).
(15) Section 3212 (relating to infanticide).
(16) Section 4302 (relating to incest).
(17) Section 4303 (relating to concealing death of
child).
(18) Section 4304 (relating to endangering welfare of
children).
(19) Section 4305 (relating to dealing in infant
children).
(20) Section 5510 (relating to abuse of corpse).
(21) Section 6312 (relating to sexual abuse of
children).
(22) Federal or out-of-State offenses similar in nature
to the offenses listed in this subsection.
(c) Five -year ban.-- A facility shall not hire or engage an
applicant required to submit criminal history information
pursuant to this subchapter for a period of five years from the
date of conviction if the applicant's criminal history record
information indicates that the applicant has been convicted of
any of the following provisions:
(1) An offense designated as a felony under the act of
April 14, 1972 (P.L.233, No.64), known as The Controlled
Substance, Drug, Device and Cosmetic Act.
(2) 18 Pa.C.S. § 2902 (relating to unlawful restraint).
(3) 18 Pa.C.S. § 3127 (relating to indecent exposure).
(4) 18 Pa.C.S. § 3301 (relating to arson and related
offenses).
(5) 18 Pa.C.S. § 3502 (relating to burglary).
(6) 18 Pa.C.S. § 3701 (relating to robbery).
(7) A felony offense under 18 Pa.C.S. Ch. 39 (relating
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to theft and related offenses).
(8) Two or more misdemeanors under 18 Pa.C.S. Ch. 39.
(9) 18 Pa.C.S. § 4101 (relating to forgery).
(10) 18 Pa.C.S. § 4114 (relating to securing execution
of documents by deception).
(11) 18 Pa.C.S. § 4120 (relating to identity theft).
(12) 18 Pa.C.S. § 4952 (relating to intimidation of
witnesses or victims).
(13) 18 Pa.C.S. § 4953 (relating to retaliation against
witness, victim or party).
(14) A felony offense under 18 Pa.C.S. § 5902(b)
(relating to prostitution and related offenses).
(15) 18 Pa.C.S. § 5903(c) or (d) (relating to obscene
and other sexual materials and performances).
(16) 18 Pa.C.S. § 6301 (relating to corruption of
minors).
(17) 75 Pa.C.S. § 3735 (relating to homicide by vehicle
while driving under influence ).
(18) 75 Pa.C.S. § 3735.1 (relating to aggravated assault
by vehicle while driving under influence ).
(19) 75 Pa.C.S. § 3802 (relating to driving under
influence of alcohol or controlled substance ).
(20) Federal or out-of-State offenses similar in nature
to the offenses listed in this subsection.
(d) Exemption.-- A facility may hire an applicant subject to
a 10-year ban under subsection (c) prior to the expiration of
the ban period, provided the applicant can demonstrate a minimum
five-year aggregate work history in care-dependent services,
without disciplinary action or a criminal conviction from the
date of conviction. Care-dependent services include health care,
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child care, mental health care or care of older adults or of
persons with intellectual disabilities or physical disabilities.
(e) Right to appeal.--An applicant or employee may challenge
the decision of the department involving the Federal criminal
history record by filing an appeal with the department in
accordance with 2 Pa.C.S. (relating to administrative law and
procedure).
(f) Employee disclosure.--The department shall develop a
standardized form to be used by facilities for the written
reporting by employees and administrators of any conviction for
an offense enumerated under subsections (b) and (c). The form
shall be published on the department's publicly accessible
Internet website and in the Pennsylvania Bulletin.
(g) Form.--
(1) The form shall contain a list of the prohibited
offenses under subsections (b) and (c) and a space for the
employee to indicate any convictions.
(2) Employees and administrators who have not been
convicted of any enumerated offense shall respond "no
conviction."
(3) Employees and administrators must be informed that
failure to accurately report any conviction for an offense
enumerated under subsection (b) or (c) shall subject the
employee to criminal prosecution under 18 Pa.C.S. § 4904
(relating to unsworn falsification to authorities).
(h) Reporting.--
(1) Facilities shall require employees and
administrators to complete and submit the form on an annual
basis.
(2) Employees and administrators shall advise their
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employers with written notice utilizing the form not later
than 72 hours after a conviction.
(i) Criminal history background check.--If an employee or
administrator refuses to submit the form, the facility shall
immediately require the employee to submit a current report of
criminal history record information as required under subsection
(a).
(j) Penalties.--
(1) An employee or administrator who discloses a
conviction for an offense enumerated under subsection (b) or
(c) shall be subject to termination.
(2) An employee or administrator who willfully fails to
disclose a conviction for an offense enumerated under
subsection (b) or (c) shall be subject to termination and may
be subject to criminal prosecution under 18 Pa.C.S. § 4904.
(k) Provisional employees for limited periods.--Facilities
may employ applicants on a provisional basis for a single period
not to exceed 30 days if all of the following conditions are
met:
(1) The applicant has applied for a criminal history
report required under subsection (a)(1) and (2) and provided
the facility with a copy of the completed request forms.
(2) The facility has no knowledge about the applicant
that would disqualify the applicant from employment under 18
Pa.C.S. § 4911 (relating to tampering with public records or
information).
(3) The applicant shall swear or affirm in writing that
the applicant is not disqualified from employment under this
subchapter .
(4) If the information obtained from the criminal
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history report reveals that the applicant is disqualified
from employment, the applicant shall be dismissed
immediately.
(l) Supervision.--The department shall develop guidelines
regarding the supervision of applicants. Supervision shall
include random direct supervision by an employee who has been
employed by the facility for a period of at least one year.
SUBCHAPTER E
REMEDIES
Sec.
6941. Penalties.
6942. Immunity from civil and criminal liability.
§ 6941. Penalties.
(a) Civil penalties.--
(1) A mandatory reporter who fails to comply or
obstructs compliance with the provisions of this chapter or
who intimidates or commits a retaliatory act against an
individual who complies in good faith with the provisions of
this chapter commits a violation of this chapter and shall be
subject to an administrative penalty. The department has
jurisdiction to determine violations of this chapter and may
issue an order assessing a civil penalty of not more than
$5,000. An order under this paragraph is subject to 2 Pa.C.S.
Chs. 5 Subch. A (relating to practice and procedure of
Commonwealth agencies) and 7 Subch. A (relating to judicial
review of Commonwealth agency action).
(2) The Commonwealth agency or Commonwealth agencies
which license the facility have jurisdiction to determine
violations of section 6931 (relating to criminal history) and
may issue an order assessing a civil penalty not to exceed
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$5,000.
(3) T he older adult or any person making a report or
cooperating with the area agency on aging, including
providing testimony in any administrative or judicial
proceeding, shall be free from any discriminatory,
retaliatory or disciplinary action by an employer or by any
other person or entity. Any person who violates this
paragraph is subject to a civil action by the reporter or the
older adult. The reporter or older adult shall recover treble
compensatory damages, compensatory and punitive damages or
$5,000, whichever is greater.
(4) Any person, including the older adult, with
knowledge sufficient to justify making a report or
cooperating with the area agency on aging, including possibly
providing testimony in any administrative or judicial
proceeding, shall be free from any intimidation by an
employer or by any other person or entity. Any person who
violates this paragraph is subject to a civil action by the
person intimidated or the older adult. The person intimidated
or the older adult shall recover treble compensatory damages,
compensatory and punitive damages or $5,000, whichever is
greater.
(b) Criminal penalties.--
(1) A mandatory reporter under this chapter who
intentionally fails to report suspected abuse, neglect,
exploitation or abandonment commits a summary offense for the
first violation and a misdemeanor of the second degree for a
second or subsequent violation and shall, upon conviction, be
sentenced to pay a fine of $5,000 or to imprisonment for not
more than one year, or both.
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(2) It shall be unlawful for a person to knowingly or
intentionally make or cause to be made a false statement or
representation of a material fact in a report of need in
accordance with 18 Pa.C.S. § 4904 (relating to unsworn
falsification to authorities). A person who makes a false
statement commits a misdemeanor of the first degree and
shall, upon conviction, be sentenced to pay a fine of no more
than $10,000 or to imprisonment for not more than five years,
or both.
(c) Immunity.--
(1) Any person participating in the making of a report,
or who provides testimony in any administrative or judicial
proceeding in any court of this Commonwealth arising out of a
report, shall be immune from any civil or criminal liability
on account of the report or testimony related to good faith
compliance with this chapter. This immunity shall not extend
to liability for acts of abuse, neglect, exploitation or
abandonment, even if the acts are the subject of the report
or testimony.
(2) Any company, institution and all affiliated entities
that employ a person required or permitted to make a report
under this chapter shall not be held civilly liable for any
action directly related to good faith compliance with this
chapter.
(d) Funds.--Funds collected under this chapter by the
department shall be dedicated for department programs to
investigate and prevent the abuse, neglect, exploitation and
abandonment of older adults.
§ 6942. Immunity from civil and criminal liability.
In the absence of willful misconduct or gross negligence, the
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area agency on aging, the director, employees of the area agency
on aging, protective services workers or employees of the
department shall not be civilly or criminally liable for any
decision or action or resulting consequence of decisions or
action when acting under and according to the provisions of this
chapter.
SUBCHAPTER F
ADMINISTRATION
Sec.
6951. Funding.
6952. Regulations.
§ 6951. Funding.
Funds necessary to administer this chapter shall be provided
by an annual appropriation by the General Assembly.
§ 6952. Regulations.
The department shall issue rules and regulations to carry out
this chapter and shall be responsible for presenting to the
General Assembly annually a report on the program and services
performed. State agencies with oversight authority over entities
impacted by this chapter shall promulgate regulations necessary
to assist the department in implementing this chapter.
Section 2. Repeals are as follows:
(1) The General Assembly declares that the repeal under
paragraph (2) is necessary to effectuate the addition of 23
Pa.C.S. Ch. 69.
(2) The act of November 6, 1987 (P.L.381, No.79), known
as the Older Adults Protective Services Act, is repealed.
Section 3. This act shall take effect as follows:
(1) The addition of 23 Pa.C.S. § 6911 shall take effect
in one year.
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(2) This section shall take effect immediately.
(3) The remainder of this act shall take effect in 180
days.
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